Remedies

Front 1

TYPES OF REMEDIES

Back 1

1. Damages
2. Restitutionary remedies
3. Equitable relief

Front 2

TORT DAMAGES

Back 2

1. Compensatory damages
2. Nominal damages
3. Punitive damages

Front 3

COMPENSATORY DAMAGES

Back 3

Compensatory damages are based on the injury to the plaintiff and puts him in a position he would have been in had the wrong and injury not occurred. To recover, plaintiff must show:
1. Causation: the tort caused the injury
2. Foreseeability: The injury was foreseeable at the time of the tortious conduct
3. Certain: The damages aren't speculative
4. Mitigate: plaintiff has a duty to take reasonable steps to mitigate damage

Front 4

NOMINAL DAMAGES

Back 4

NOmINal damages: NO INjury sustained. Nominal damages are recoverable when no actual injurty is sustained

Front 5

PUNITIVE DAMAGES

Back 5

Punitive damages may be awarded to punish the d's willful, wanton, or malicious conduct. In order to receive punitive damages
1. P must have been awarded compensatory damages OR nominal damages
2. D's actions must amount to more than negligence
3. Punitive damages are awarded in an amount relatively proportionate to actual damages

Front 6

RESTITUTIONARY REMEDIES

Back 6

1. Restitutionary damages
2. Replevin
3. Ejectment
4. Constructive Trusts
5. Equitable Lien

Front 7

RESTITUTIONARY DAMAGES

Back 7

i. Restitutionary damages obligates the d to pay the p reasonable value of a benefit unjustly obtained. These damages are available in tort situations only where tort results in a benefit to the d.

Plaintiff cannot be awarded both compensatory and restitutionary damages- but discuss both and award p the larger sum

Front 8

REPLEVIN

Back 8

Replevin allows the plaintiff to regain possession of specific personal property before the trial. To recover replevin, the plaintiff must show
1. The p has the right to possession AND
2. There is a wrongful withholding by the d.
3. The p must post a bond before the trial, but the d can defeat this by posting a redelivery bond

Front 9

EJECTMENT

Back 9

Ejectment is a legal remedy that allows the p to recover possession of specific REAL property. The plaintiff must show that
1. The p has the right to possession, AND
2. There was a wrongful withholding by the d.

Front 10

CONSTRUCTIVE TRUST (to be used when the property value goes up after d wrongfully took the property)

Back 10

Constructive trusts are imposed on improperly acquired property to which the d already has title. P must show
1. D has title to the property
2. D's acquisition of the title can be traced to the property that D wrongfully acquired
3. D's retention would result in unjust enrichment
4. P has no adequate remedy at law because (1) d is insolvent, or (2) property is unique

Front 11

EQUITABLE LIEN (to be used when the property value subsequent to the taking goes down, or property can't be traced)

Back 11

An equitable lien is imposed on d's property to secure payment of a debt the d owes to the p. An equitable lien can be imposed on
1. property that the d holds title and,
2. to which the wrongfully obtained property can be traced

Front 12

PRELIMINARY INJUNCTIVE RELIEF

Back 12

Preliminary injunctive relief is issued where there is a pending trial on the merits. The p must show:
1. P suffered an irreparable injury (weighed against any hardship d will suffer if temporary injunction is granted)
2. P establishes the likelihood of success

Front 13

PERMANENT INJUNCTIVE RELIEF

Back 13

Where damages or restitution are inadequate to remedy a tort, the p may be able to get an injunction ordering the d to perform or remain from performing a certain act.
I PUT FIVE BUCKS DOWN:

Front 14

INADEQUATE REMEDY AT LAW

Back 14

Legal remedy may be inadequate because
1. Money damages are inadequate
2. Damages are highly speculative
3. Multiplicity of suits
4. P suffers an irreparable injury (because the property is unique)
5. Replevin or Ejectment is inadequate

Front 15

PROPERTY RIGHT/PROTECTABLE INTEREST

Back 15

1. Traditionally, equity protected only property rights.
2. Under modern law, some courts include just about anything to meet his requirement
3. Write about both

Front 16

FEASIBILITY OF ENFORCEMENT

Back 16

The court will not issue a decree that would be difficult to supervise. (negative injunctions no enforcement problems). But when the court is ordering someone to DO something, there may be an enforcement problem because
1. It may be difficult to supervise the defendant, or
2. There is a concern with effectively ensuring compliance

Front 17

BALANCING THE HARDSHIPS

Back 17

The hardship to the d cannot outweigh the benefit that the p may get from relief sought.

Front 18

DEFENSES MUST BE OVERCOME

Back 18

1. Laches: laches is an unreasonable delay by the p in initiating his claim that results in prejudice to the d.
2. Unclean hands: the party seeking equitable relief must not be guilty of unfair dealing with respect to the transaction sued upon
3. Freedom of speech prohibits injunctions against personal defamations
4. If it's impossible for the d to carry out the terms of the injunction, injunction denied

Front 19

TEMPORARY RESTRAINING ORDER

Back 19

A TRO is a short term decree limited to 10 days maintaining the status quo pending issuance of a preliminary injunction.

Front 20

CONTRACTS REMEDIES

Back 20

1. Compensatory damages
2. Punitive damages
3. Restitutionary relief in quasi-contract
4. Specific performance
5. Rescission
6. Reformation

Front 21

COMPENSATORY DAMAGES

Back 21

Compensatory damages are based on the injury to protect the p's expectation interest. The four requirements for compensatory damages
1. Causation
2. Foreseeability
3. Certainty
4. Duty to mitigate

Front 22

CONSEQUENTIAL DAMAGES (part of compensatory damages)

Back 22

Consequential damages are available for RELATED damages foreseeable at the time of formation

Front 23

LIQUIDATED DAMAGES

Back 23

Liquidated damages clause may limited the damages recoverable. Such provisions are valid if it is shown that
1.At the time of contract, actual damages would have been extremely difficult to ascertain, and
2.The amount stipulated was a reasonable forecast of what damages would be

Front 24

NOMINAL DAMAGES

Back 24

no injury-- nominal damages are allowed

Front 25

PUNITIVE DAMAGES

Back 25

Punitive damages are not allowed, however, if the d's conduct is willful, the p may obtain damage under a tort claim. Punitive damages will only be allowed where it appears that the breach was malicious or tortious

Front 26

RESTITUTIONARY DAMAGES

Back 26

If the p has rendered performance, but it is later discovered that the K is unenforceable or the K is breached, p can seek restitutionary damages to prevent the d from unjustly enriching from p's performance. If the contract was MATERIALLY BREACHED, the non-breaching party can recover THE REASONABLE VALUE OF HER PERFORMANCE

Front 27

SPECIFIC PERFORMANCE

Back 27

Specific performance is a mandatory decree that orders a contracting party to perform what he promised to perform under the contract

Front 28

REQUIREMENTS FOR SPECIFIC PREFORMANCE

Back 28

CHA CHA IS MY FAVORITE DANCE:
1. Contract validity
2. Conditions of the p must have been satisfied
3. Inadequate remedy at law
4. Mutuality of performance
5. Feasibility of enforcement (personal services k)
6. Defenses

Front 29

CONTRACTUAL VALIDITY

Back 29

There must be a K between the parties.

Front 30

CONDITIONS OF P MUST BE SATISFIED

Back 30

P must have fulfilled all his conditions under the contract in order to obtain specific performance

Front 31

INADEQUATE REMEDY AT LAW

Back 31

The legal remedy must be inadequate. Possible reasons include
1. Damages were speculative
2. D is insolvent
3. Multiple suits are necessary
4. The thing bargained for is unique

Front 32

MUTUALITY OF PERFORMANCE

Back 32

The court must be satisfied that it can secure p's counterperformance under the contract

Front 33

FEASIBILITY OF ENFORCEMENT

Back 33

The decree must be feasible to enforce.

Personal service contracts are not specifically enforceable because commanding performance may amount to involuntary servitude

Front 34

DEFENSES

Back 34

The action cant be blocked by any defenses
1. laches: unreasonable delay that prejudices the d
2. Unclean Hands: unclean hands requires unfair dealing that arises out of the same transaction
3. Hardship
4. Mistake of misrepresentation that results in hardship

Front 35

RESCISSION

Back 35

Rescission cancels the contract when it results from mistake, fraud, or duress. The plaintiff must show
1. Grounds for rescission
2. No valid defenses

Front 36

GROUNDS FOR RESCISSION

Back 36

1. If mutual mistake about a material fact, rescission is GRANTED
2. If mutual mistake about COLLATERAL FACT, rescission is DENIED
3. If there is a unilateral mistake, rescission is DENIED UNLESS the non-mistaken party knows or should have known of the mistake
4. If the defendant made a misrepresentation, and the plaintiff actually relied on the misrepresentation, rescission is GRANTED

Front 37

REFORMATION

Back 37

Reformation modifies a written instrument to reflect the parties true intent. Reformation requires
1. Valid contract
2. Grounds for reformation
3. No valid defenses

Front 38

GROUNDS FOR REFORMATION

Back 38

1. mutual mistake -- reformation GRANTED
2. Misrepresentation, Fraud-- reformation GRANTED
2. Unilateral mistake-- reformation DENIED